The headline, copied verbatim by journalists uncritically looking to fill column-inches of space with sexy, outrageous stories and advocates eager to be thus outraged, reads: “Govt tells Christian ministers: Perform same-sex weddings or face jail, fines: Officials threaten to punish senior citizen couple – both ordained pastors – if they decline to officiate same-sex ceremonies”. Yikes.
On the face of it, that seems to raise a crisis of conscience for freedom-loving advocates of same-sex marriage like me. Yes, a same-sex couple should have the legal right to get married, but with equal if not even greater obviousness is the proposition that a religious person ought not be compelled to engage in an activity contrary to their own religion.
Looking a bit deeper than the headlines, I’ve found that the Hitching Post Lakeside Chapel is located directly across the street from the Kootenai County Clerk’s office in Coeur D’Alene, Idaho, a popular resort destination. It is owned and principally operated by Donald and Evelyn (“Lynn”) Knapp, both of whom are committed Christians (they met at Los Angeles’ Life Bible College) and both of whom are pastors ordained by some sort of larger religious organization. Note well, however, that while it appears they’ve been in this business at this location for quite some time, we are speaking now of a business entity, Hitching Post Weddings, LLC, an entity organized only very recently (September 12, 2014) and which recently merged in a Washington corporation that the Knapps also own. Other than the Knapps, it appears there is only one other employee of the entity.
The City of Coeur D’Alene had adopted an ordinance prohibiting discrimination in housing, employment, and public accommodations. Under the ordinance, a “public accommodation” is defined as “…any public place, licensed or unlicensed, kept for gain, hire or reward, or where charges are made for admission, service, occupancy or use of any property or facilities…” and the Knapps admit that their business is such a “public accommodation.” Refusal of service on the basis of sexual orientation or gender identity is a prohibited act under the ordinance. A violation of the ordinance is a misdemeanor, which means there is a theoretically jail time associated with it of up to 180 days as well as a fine of up to $1,000 per incident. This can be reduced by motion of the prosecution to an infraction, meaning that enforcement would be reduced to a $100.00 per-incident fine, with guidance that the prosecutor is to consider whether the defendant has undertaken appropriate remedial efforts after the violation.
As you might imagine, the Knapps do not want to perform same-sex wedding ceremonies in their chapel. In light of October 7’s decision by the Ninth Circuit in Latta v. Otter, striking down Idaho’s ban on same-sex marriages, the City of Coeur D’Alene has advised the Knapps that they will have to open their doors to same-sex couples seeking marriage. No same-sex couple has actually sought to services of the Hitching Post Lakeside Chapel to date, however. I don’t know one way or the other if there are other wedding chapels in Coeur D’Alene, although it would boggle my mind if there were not — it’s a beautiful location, one which would seem to attract people looking to have happy events like weddings.
So the Knapps hired the Alliance Defending Freedom, which styles itself “an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith” and which has also been described as “a Christian legal firm established by more than 30 Christian ministries to help defend “family values” and work against the ACLU” headed by one Alan Sears, a columnist for WND Daily and author of two books entitled The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today and The ACLU vs. America: Exposing the Agenda to Redefine Moral Values. So that’s where the attorneys are coming from. Note that ADF is a different legal outfit than the one that brought the Hobby Lobby case to the Supreme Court, although as I argue below, they owe that entity a massive debt of thanks. Their legal points are valid, or not, regardless of the far-right nature of their origin, but I think it lends perspective to see the motive force behind the suit.
With ADF’s help, on Friday the Knapps and Hitching Post Weddings, LLC sued City of Coeur D’Alene, seeking an injunction against enforcement of the anti-discrimination ordinance as to same-sex marriages, and the standard other relief associated with impact litigation of this nature (most importantly being an award of attorney’s fees so that the City will pay the ADF for the privilege of having been sued by it).
Not particularly important so far as I can tell, is that the Knapps are senior citizens. That bit of the headline is a rather naked play for sympathy on an irrelevant issue. You don’t get a “get out of discrimination free” card because you’re over a particular age. But whatever with that.
Six years ago on what was then my own private blog, I explored the impact of a business having been found a “public accommodation” notwithstanding the religious principles of the people who operate it. Here’s the core of what I wrote then:
In Bernstein v. Ocean Grove Camp Meeting Association, a lesbian couple wanted to perform a civil union ceremony at a beachside facility owned and operated by a Lutheran faith organization (it appears to not be a church per se, but it affiliates and identifies with Lutheran Christianity). The New Jersey agency investigating the complaint found probable cause to permit the charge of discrimination proceed. But, in Moore v. Ocean Grove Camp Meeting Association, another lesbian couple wanted to perform their civil union ceremony at the exact same facility. In that case, no probable cause was found. Both case results were announced on the same day — [December 29, 2008].
Same facts, same defendant, same facility, decided on the same day, but different results.
What was the difference? In Bernstein, the investigation found that the religious organization that owned the facility rented it out to pretty much anyone who asked to use it, and paid a usage fee. It was used by the Lutheran churches that were members of the organization without fee and with priority for use, but if it wasn’t being used at that time, a Catholic group or a Baptist group or a non-religious youth group could use it too. It was rented out for weddings, awards ceremonies, social events, and a whole bunch of other things. This made it a “public accommodation” under the New Jersey law, and therefore subject to the anti-discrimination laws.
After Ms. Bernstein and her partner applied and started causing a stink, the organization changed its policy for use of the facility. Instead of making the facility available to anyone, its use was restricted to only the churches that were the members of the organization. They stopped holding weddings there altogether. So in the Moore case, the facts showed that the facility was private, not public. Since it had become a truly private facility, it was not a “public accommodation” and therefore beyond the scope of the anti-discrimination laws.
And to this day that seems like exactly the right analysis to me. I thought it was the right result in Elane Photography LLC v. Willock, the case about a wedding photographer in New Mexico who didn’t want to accept a gig at a same-sex commitment ceremony. If you don’t want to be subject to laws of general applicability regulating businesses open to the public, don’t be a business open to the public. And I’d be quick to tell the Knapps today that their business is, indeed, open to the public and therefore regulable like any other business open to the public, so I don’t have a lot of sympathy for their desire to immunize themselves from laws of general applicability by virtue of their (admittedly sincere) religious belief.
My problem is that now, I don’t think this is a legally valid analysis anymore. In light of the case now known as Burwell v. Hobby Lobby Stores, Inc., the Religious Freedom Restoration Act (RFRA) appears to trump the distinction between a public accommodation and a truly private club. Granted that RFRA only protects “persons,” not business entities, but Section III of the majority’s opinion in Burwell v. Hobby Lobby reasons that not only does a separate act of Congress include corporations (and thus by extension limited liability companies) in the legal definition of a “person,” but also because a person is necessary to make a corporation do something, the corporation becomes an extension of the human acting on its behalf, that person’s religious rights should be protected by RFRA. (All of this applies by incorporation, via the Fourteenth Amendment, to the State of Idaho and its political subdivision, the City of Coeur D’Alene.)
Which means that now we’re in the world of the RFRA religious rights protection test. The Knapps and their entity must prove two things:
(1) That they have a sincere religious belief that marriage is between only one man and only one woman, and
(2) That the City’s ordinance substantially burdens this belief.
If they can, and there seems very little reason to doubt that they can, then the burden shifts to the City to prove:
(3) The ordinance is in furtherance of a compelling interest, and
(4) The ordinance is the least restrictive means available of fulfilling that compelling interest.
And that’s going to be the battleground of this lawsuit. We don’t need to have any actual same-sex couples asking for the Knapps’ services; the mere existence of the ordinance is enough to trigger standing here. (That is as it should be, in my opinion.) But now the calculus is not whether a business is open to the public or not, it’s now whether a particular person involved in a particular business has a religious objection to this particular law, whether the law is important enough that we pretty much have to disregard it, and if we’ve done enough to accommodate the religion along the way.
Our first real question, then, is whether preventing discrimination against non-heterosexual people in public accommodations is a compelling governmental interest.
Our second real question is, assuming that the answer to the first question is “yes,” is requiring the Knapps to provide their services to same-sex couples the least restrictive means available to the City of Coeur D’Alene to achieve that goal?
As to question 1, it’s as unclear now as it has ever been what the phrase “compelling governmental interest” means. Clearly it’s more than a preference or an economic benefit; in Burwell v. Hobby Lobby, no “compelling governmental interest” was found in the government’s claim to seek broadened access to contraception by people in general. We know that things like national security and health and safety generate such interests. And we know that a compelling interest is more than an “important state interest,” like the prevention of gender discrimination (Craig v. Boren (1976) 492 U.S. 190, 197). So right away, I see a problem: the case law rather strongly suggests that this is not a compelling interest. Maybe it’s not an insurmountable one; maybe since 1976, we’ve decided as a culture that enforcing non-discrimination is indeed a “compelling,” and not merely an “important,” thing for our government to do, such that it becomes difficult to have a civilized society without it.
That’s before we get to the question of whether to achieve this interest, we must compel (one of) the Knapps to perform a religious ceremony which they consider to be a perversion of their religious faith, or if there is some other way that non-heterosexuals can be put on an equal footing with heterosexuals. Would or wouldn’t we want to compel them to offer their services for a mixed-race couple? Or do you think that is a bad analogy?
The good news, for me, is that this is the sort of thing that I think RFRA is properly for. We really shouldn’t compel the Knapps to perform a ceremony that is contrary to their religion, even if it is in the context of a public accommodation. The level of intimacy involved in actually presiding over that ceremony is very high (as I know from having presided over weddings myself). I’m comfortable with a result that tells a same-sex couple, sorry, you can’t make this particular someone do this very thing, preside over a wedding ceremony, especially not if there are reasonable alternatives readily at hand, as I presume there are in a resort location like Coeur D’Alene.
My problem is that I don’t know where the line gets drawn. If we say the Knapps don’t have to preside over the ceremony, then we petty much necessarily also let them not make their banquet hall or other physical facilities available. That seems more like a restaurant to me, and I think we ought to compel a restaurant to serve a same-sex couple the same way it serves a mixed-sex couple. I think that there is less intimacy involved in baking and decorating a wedding cake or serving as a disc jockey at a reception than in performing a wedding ceremony. But, what ought to be the rule in an area where it is less likely that redundant providers of the product or service in question is available?
The idea of, “If you’re open to the public, you’re open to the public so you have to serve the public” is a rule that I can get behind morally and intellectually, because a coherent rule can be made out of it. The idea of “If you have a personal religious objection to doing something you don’t have to do it” has moral appeal but I cannot conceive of how a non-arbitrary rule about what things are or aren’t included in a rule resulting from that concept. Maybe the rule just has to be arbitrary — but if that’s the case, then why not compel the Knapps to perform the wedding? Or, why not allow anyone to get away from any rule of any kind on the basis of claiming a religious objection?
Lawyers like it when there are coherent, understandable rules. Which is the principal reason why I don’t like the Knapps’ lawsuit — it makes the rules much blurrier, much less easy to understand.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.